A bench of justices Sanjiv Khanna and Dipankar Datta, delivering separate but concurring judgment, expressed confidence in the current electoral mechanisms

The Supreme Court on Friday affirmed the credibility of Electronic Voting Machines (EVMs) and their integration with Voter Verifiable Paper Audit Trails (VVPATs), rejecting petitions that demanded 100% cross-verification of votes cast on EVMs with the VVPATs or going back to the ballot paper system.

A bench of justices Sanjiv Khanna and Dipankar Datta, delivering separate but concurring judgment, expressed confidence in the current electoral mechanisms, emphasising that mere suspicion is not enough to question a system pivotal to the democratic process of the world’s largest democracy. The ruling coincided with the second phase of the Lok Sabha elections.

The court issued two directives to allay the apprehension of the candidates in the fray and strengthen the existing mechanism. It said that the containers carrying the symbol loading unit should be sealed in the presence of the candidates or their polling agents and be kept secured for 45 days – the period for which the control unit, ballot unit, and VVPATs candidates are preserved for enabling candidates to file election petitions against the poll result.

Second, the court ordered that if any candidate files a written complaint within seven days of the poll results, casting doubt on the process’s dependability, the control unit, ballot unit, and VVPATs would be examined by the engineers of the EVM manufacturing companies following the results announcement.

The bench delivered the ruling a day after it remarked that the Election Commission of India (ECI), a separate constitutional authority, is responsible for overseeing election management and that the court cannot issue orders that question the efficacy of EVMs and their integration with the VVPATs based solely on suspicions or private reports. While hearing the case on Wednesday, the court clarified that the EVM source code cannot be disclosed owing to the fear of its misuse.

The batch of petitions before the court generated political heat and public interest over ensuring the integrity of electronic voting via VVPATs. This system provides a paper slip confirmation, viewed by the voter through a transparent window, which goes into a sealed cover that is available for verification in case of disputes. Currently, the verification process involves checking VVPAT slips from five randomly selected EVMs in each assembly segment.

Petitions filed by the non-profit Association for Democratic Reforms (ADR) and activist Arun Kumar Agarwal sought a more comprehensive approach. Agarwal advocated for the counting of all VVPAT slips to ensure transparency. ADR’s petition focussed on enabling voters to confirm that their votes are counted as they were cast. The petitions also sought that voters be permitted to physically deposit their VVPAT slips in ballot boxes. 

The integration of VVPAT with EVMs first gained legal prominence following a petition by BJP leader Subramanian Swamy after the 2009 general elections. Swamy advocated for a paper trail to augment the reliability of electronic voting, arguing that it would ensure that each vote cast on an EVM is accurately recorded. Although initially dismissed by the Delhi high court, the plea found favour in the Supreme Court, which, in its landmark 2013 judgment, declared the VVPAT system an “indispensable requirement” for free and fair elections.

Following this, ECI was directed to implement VVPAT systems across electoral processes to complement EVMs. This system enables the generation of a paper slip for each vote cast, which is displayed to the voter behind a transparent window for seven seconds before being securely stored. This mechanism allows for a physical audit trail of votes cast electronically, serving as a safeguard against potential discrepancies in the electronic tally.

Initially, ECI conducted a mandatory verification of VVPAT paper slips for one randomly selected polling station per assembly segment in a constituency. In April 2019, the top court ordered that the number of EVMs subjected to VVPAT verification be increased from one EVM per assembly segment to five EVMs. The direction came following a petition filed jointly by 21 Opposition parties, seeking a review of at least 50% of VVPAT slips to ensure the integrity of the elections. The parties went back to the Supreme Court in May 2019 asking for counting of at least 25% VVPATs instead of only five in every assembly segment, but the court turned down their plea yet again.

When the court heard the batch of petitions on previous dates, it had remarked that “the system was working well” and “over-suspicion” alone cannot justify criticism after careful consideration of explanations provided by the ECI in response to petitions demanding 100% cross-verification of votes cast on EVMs with VVPATs.

The court, while hearing the case, also deemed it improper to compare EVMs with systems used in other countries, after some petitioners cited examples from Bangladesh and Germany where different voting methods are used. “Don’t say other countries have better systems than ours. We have our own system. It’s working well. It’s doing well...why should we disband it? Earlier, we saw the problems with the ballot system. Every year, the percentage of voting has gone up...from 60-66% is indicative of the faith that voters have in the system,” the court observed on April 18.